Guy v. Active Plastics
Filed 10/13/06 Guy v. Active Plastics CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
ERLINDA GUY, H029714
Plaintiff and Respondent, (Santa Clara County
Superior Court
v. No. 1-04-CV013481)
ACTIVE PLASTICS, INC.,
Defendant and Respondent;
ACE AMERICAN INSURANCE COMPANY,
Intervener and Appellant.
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Intervener Ace American Insurance Company (Ace) appeals from the superior court’s denial of Ace’s motion to vacate the judgment under Code of Civil Procedure section 473. We find no abuse of discretion in the denial of the motion and affirm the court’s order.
I. Background
Plaintiff Erlinda Guy apparently filed a negligence action against defendant Active Plastics (AP) for injuries she sustained in a workplace accident. We say apparently because the appellate record does not contain Guy’s complaint. AP filed an answer in which it alleged as an affirmative defense “[t]hat each plaintiff’s employer was itself negligent and under the doctrine of Witt v. Jackson 57 Cal.2d 57 (1961), and [sic] the claim of each plaintiff’s employer should be disallowed by whatever percentage of negligence is found attributable to each plaintiff’s employer.” We will refer to this affirmative defense as the Witt v. Jackson issue. In June 2004, Ace, Guy’s employer’s worker’s compensation carrier, filed a complaint in intervention against AP.
On November 18, 2004, Ace’s trial counsel, Mark Susson, was notified by the court by mail that trial was set for January 31, 2005. The notice stated: “No further notice will be given by the court.” A settlement conference was scheduled for January 26, 2005.
On January 28, 2005, Ace and AP settled the action between them with regard to Ace’s “reimbursement claim for workers’ compensation expenses.” Guy and AP subsequently settled all issues between them except for the Witt v. Jackson issue. On January 31, 2005, neither Susson nor anyone representing Ace appeared at the scheduled trial. Guy and AP stipulated to the matter being tried by temporary judge John C. Stein.
The following colloquy then occurred. “MR. BOHN [Guy’s trial counsel]: There was also a complaint in intervention on behalf of the worker’s compensation carrier claiming a lien at the time. They were represented by Mr. Mark Susson, S-U-S-S-O-N, from Newport Beach. They have settled out their part of the case. I called Mr. Susson’s office this morning just before noon to inquire as to whether they planned to appear at the trial and was informed by his office -- Mr. Susson, I heard him tell his secretary that I was talking to on the phone, I could overhear, that he was going to lunch. They had settled out of the case and they would not be appearing at the trial. THE COURT: He’s an attorney, presumably. MR. BOHN: Mr. Susson is an attorney, yes. THE COURT: Did he know that there was a Wit[t] versus Jackson pled in this case and that future benefits are going to be determined? MR. BOHN: We went into that in specific detail at our settlement conference last week about the employer negligence and the effect that it would have on the lien and future credits, and we had a rather lengthy discussion all afternoon last Wednesday. THE COURT: Mr. Schori [AP’s trial counsel], were you part of those discussions as well? MR. SCHORI: I was, your Honor. And the occurrence of those discussions resulted in a settlement by the intervener on their complaint in intervention in the amount of ten cents on the dollar or 6,000 of their $60,000 lien.”
The Witt v. Jackson issue was then tried to Judge Stein. At the close of evidence, Judge Stein made the following statement. “Well, let me just say, first of all, that I find it extremely distressing that the workers’ compensation carrier filed a complaint in intervention and then essentially walked away from the trial when there were still issues pending. It’s not something that is unusual, but it never ceases to amaze me that a carrier would hire a lawyer to represent them, then walk away from a trial. I appreciate the fact that they feel they settled the lien, but with Wit[t] versus Jackson issues still pending, this Court has jurisdiction . . . .”
Judge Stein determined that Guy’s employer was 90 percent at fault and Guy was 10 percent at fault. Judgment was entered on February 3, 2005. The judgment stated that Ace had not appeared at trial and had confirmed by telephone on the day of trial that it “would not be appearing for trial because [its] complaint in intervention had been settled.” On February 4, 2004, Ace submitted a request for dismissal of its complaint in intervention. Notice of entry of judgment was served on Ace on March 1, 2005.
On July 27, 2005, one week less than six months after entry of judgment, Ace filed a motion to vacate the judgment under the discretionary provisions[1] of Code of Civil Procedure section 473[2]. Ace’s motion was based on extrinsic fraud, lack of notice and mistake of fact. On October 28, 2005, the court denied Ace’s motion.[3] “Ace . . . chose not to attend the trial based on the assumption that the unresolved issue of employer negligence would settle. That issue did not settle. It could not be resolved without Ace’s participation because they had settled with the defendant, leaving open the question of possible credits against plaintiff’s future benefits. Since Ace did not appear for the trial, they have no standing to object to how and before whom the proceedings occurred.” On December 27, 2005, Ace filed a notice of appeal from the court’s order denying its motion.
II. Discussion
A. Jurisdiction
Guy claims that this court lacks jurisdiction to consider this appeal because Ace did not timely appeal from the judgment or from an appealable post-judgment order. Ace did not appeal from the judgment, but it did file a timely appeal from an appealable post-judgment order. An order denying a post-judgment motion to vacate under section 473 is an appealable post-judgment order. (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394.) The superior court denied Ace’s motion on October 28, 2005, and a copy of the court’s order was mailed to Ace by the clerk that day. Ace filed its notice of appeal on December 27, 2005, within the 60-day time period for appealing from such an order under California Rules of Court, rule 2(a). We have jurisdiction over this appeal.
B. Standard of Review
Ace claims that our standard of review is de novo. It is mistaken. “It is well established that ‘a motion for relief under [Code of Civil Procedure] section 473 is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof the exercise of that discretion will not be disturbed on appeal.’” (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 897-898.) We review the superior court’s denial of Ace’s motion solely for abuse of discretion.
C. No Abuse Of Discretion
“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b), italics added.)
Ace’s motion stated that it was based on fraud, lack of notice and mistake of fact. However, Ace’s points and authorities described four grounds for the motion: (1) lack of notice/inadequate notice of trial; (2) lack of disclosure of the temporary judge’s alleged potential conflict of interest and lack of Ace’s consent to the temporary judge; (3) limitation of the trial to a single issue; and (4) fraud and collusion between Guy and AP.
1. Notice
Ace conceded that it had been properly notified of the January 31, 2005 trial and knew that the Witt v. Jackson issue “was a bona fide issue in the case.” Nevertheless, Ace’s attorney claimed that Ace was deprived of notice because he was not informed in advance that the January 31, 2005 trial would be limited to the Witt v. Jackson issue. He denied having received telephonic notice of this fact on January 31, 2005, and he also claimed that such notice would have been inadequate because his office was too far from the courthouse for him to make it there in time for the afternoon trial after the 11:30 a.m. telephone call.
The superior court could have concluded that Ace was not deprived of notice that the Witt v. Jackson issue would be tried at the January 31, 2005 trial since Ace was aware that the Witt v. Jackson issue remained pending and that the trial was scheduled for that day. (See § 594, subd. (a).) Regardless of whether or not other issues were going to be resolved at that trial, Ace was well aware that the Witt v. Jackson issue remained pending and subject to resolution at that trial. The fact that the trial was limited to the Witt v. Jackson issue does nothing to alter the fact that Ace was aware that the January 31, 2005 trial, whether limited or unlimited, was likely to resolve that issue. The superior court did not abuse its discretion in concluding that Ace was not deprived of adequate notice that the Witt v. Jackson issue was set to be tried at the scheduled January 31 trial.
2. Temporary Judge
Ace’s motion challenged the trial of the Witt v. Jackson issue before Judge Stein on the grounds that Ace did not stipulate to Judge Stein’s service as a temporary judge and Judge Stein had a potential conflict of interest. While Ace might have been able to raise these contentions in an appeal from the judgment, this is not such an appeal.[4] A section 473, subdivision (b) motion under the discretionary provisions of that subdivision is only viable if it is based on the moving party’s (or its attorney’s) “mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b).) The absence of a stipulation or the presence of a conflict of interest would not establish that the judgment was taken against Ace as a result of Ace’s (or its attorney’s) mistake, inadvertence, surprise or excusable neglect. A section 473 motion cannot be used as a belated new trial motion or as a belated appeal from the judgment. It may only be used to obtain relief from judgments that were caused by the party’s or its attorney’s error. These contentions do not relate to an error by Ace or its attorney. Hence, the superior court did not abuse its discretion in rejecting this ground for Ace’s motion.
3. Restriction of Issues
Ace’s motion claimed that the court lacked the authority to hold a trial on a single issue. Again, a section 473 motion does not permit a party to raise every issue that it might have raised in a challenge to the judgment. A section 473 motion is restricted to obtaining relief from the result of the moving party’s error. The restriction of the trial to a single issue was not the result of Ace’s or its attorney’s error. The superior court did not abuse its discretion in rejecting this ground for Ace’s motion.
Ace insists that the proceedings below were a “sham” because Guy and AP did not have adverse interests with regard to the Witt v. Jackson issue at the trial. While it is true that, after the settlements between Guy and AP and between AP and Ace, the resolution of the Witt v. Jackson issue did not concern AP and was relevant only to Guy’s possible future credits, this issue remained within the universe of issues pending before the trial court at the time of the scheduled trial. Since Ace was aware that the case was set for trial even after its settlement with AP, Ace should have known that the Witt v. Jackson issue could be resolved at that trial and should have acted to protect its interests. Ace’s informed failure to act did not render the trial a sham.
4. Extrinsic Fraud
Ace’s motion asserted that Guy and AP perpetrated extrinsic fraud by trying the Witt v. Jackson issue without Ace’s participation.
“Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been ‘deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’ [Citation.]” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471.)
Ace’s extrinsic fraud claim depended on the validity of its lack of notice claim. Ace claimed that Guy and AP deliberately failed to notify Ace that the trial on January 31, 2005 would be limited to the Witt v. Jackson issue and thereby prevented Ace from participating in the trial of that issue. The superior court could have rejected this contention for the same reason that it rejected the lack of notice claim. Ace was aware that the trial was scheduled for January 31 and that the Witt v. Jackson issue remained pending. It follows that Ace’s decision not to attend the trial was not the result of a lack of notice that the Witt v. Jackson issue would be resolved at the trial and therefore could not have been caused by any fraud perpetrated by Guy or AP. The superior court did not abuse its discretion in rejecting this ground for Ace’s motion.
III. Disposition
The order is affirmed.
_______________________________
Mihara, Acting P.J.
WE CONCUR:
_____________________________
McAdams, J.
_____________________________
Duffy, J.
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[1] Ace’s motion was not based on attorney fault. “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) Ace’s motion to vacate was accompanied by a declaration of Ace’s attorney, but Ace’s attorney did not assert that he had been at fault. Instead, he asserted that he had not received adequate notice of the trial.
[2] Subsequent statutory references are to this code.
[3] The superior court held two hearings on the motion. At both hearings, the attorneys for Guy and AP made statements about what had occurred in January 2005. However, the attorneys were never sworn, so we do not consider these statements.
[4] “Although the jurisdiction of a temporary judge to try a cause derives from and depends upon the parties’ stipulation thereto, this constitutional requirement is nevertheless subject to implied waiver. Thus, for constitutional purposes a valid stipulation may be implied by the conduct of the parties, including their participation in a proceeding tried by a temporary judge.” (In re Brittany K. (2002) 96 Cal.App.4th 805, 813.) Ace had stipulated to a temporary judge other than Stein in connection with the settlement conference. Whether this conduct might support an implied waiver is not before us in this appeal.
